DOJ’s legal justification for the move requires further scrutiny. While the government hasn’t said what it’s investigating, it has addressed some of the technical aspects of its remarkable incursion into a news organizations’ records.

• Justice Department policy “provides that we should issue subpoenas for phone records associated with media organizations only in certain circumstances,” Deputy Attorney General James M. Cole wrote in a letter to AP CEO Gary Pruitt Tuesday.

“We are required to negotiate with the media organization in advance of issuing the subpoenas unless doing so would pose a substantial threat to the integrity of the investigation.” Justice, he wrote, “undertook a comprehensive investigation, including, among other investigative steps, conducting over 550 interviews and reviewing tens of thousands of documents, before seeking the toll records at issue.”

By apprising the New York Times of the intent to subpoena phone records, the government — specifically, U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald — gave the newspaper the tools it needed to defend itself. In a September 2004 filing, the New York Times sought “declaratory judgment” in a New York court that the records were protected by the First Amendment. It prevailed.

Storied defense attorney Abbe Lowell tells them the government’s move reflected increasing confidence in its ability to collect information with impunity: “As law enforcement takes one step without being restrained, it gets emboldened to then expand to the next step and that’s what this reflects.” (Here’s a guide to what information authorities can collect without a warrant.)

• Meanwhile, at least one fan of the government’s action emerged yesterday: Democratic strategist Hilary Rosen, who attempted to launch a hashtag in support of presidential spokesperson Jay Carney.